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Overview
—Richard A. Falk, professor emeritus of international law at Princeton University
Product Details
| ISBN-13: | 9780520026247 |
|---|---|
| Publisher: | University of California Press |
| Publication date: | 10/24/1973 |
| Series: | Perspectives on Southern Africa , #12 |
| Edition description: | First Edition |
| Pages: | 288 |
| Product dimensions: | 5.40(w) x 8.40(h) x 0.90(d) |
About the Author
Read an Excerpt
Justice in South Africa
By Albie Sachs
University of California Press
Copyright © 1973 Albie SachsAll right reserved.
ISBN: 0-520-02624-1
Chapter One
Law Enforcement and Race Attitudes in a Slave-Owning Society: The Dutch Settlement at the Cape 1652-1795The modern legal system in South Africa today, with its flourishing legal profession, bustling courts, vast prison population and busy gallows, had its humble beginnings in the small refreshment station established by the Dutch East India Company at the Cape in 1652.
The first Court of Justice met in a hall in the centre of the Commander's earthenwork fort. The setting was exotic, the judges untrained and the procedures, especially in criminal matters, barbarous by modern standards. Round the walls hung skins of lions and leopards and the polished horns of slain buck, whilst opposite the entrance stood the figure of a stuffed zebra. The judges consisted of the Commander and his advisory council, none of whom were legally trained. They made no claim to be independent from the Executive, in fact they were the Executive; nor were they separate from the Legislature, for inasmuch as they had power to assist the Commander in framing local decrees they were the Legislature as well. The multi-purpose hall in which they met was also used as a Church on Sundays, the zebra being moved out during divine service. This unity of functions was not inappropriate for a tiny refreshment station, but it caused increasing strain when the settlement expanded and gave birth to a large class of independent farmers with interests separate from those of the Company.
The Dutch settlement was never more than a small enclave in the southern African sub-continent, and even after a century and a half of development it did not impinge directly on the lives of the great majority of inhabitants of the territory now known as South Africa. It was governed primarily as a trading station, a half-way house for ships sailing to and from the East Indies, and few of its institutions survive in immediately recognisable form today. Roman-Dutch law-a late Middle Ages inter-marriage of Germanic custom and Roman lawstill exists as the common law of South Africa, but the contribution made to it by the Dutch courts at the Cape was nil. Yet the period of Dutch settlement was of great importance to subsequent South African history, since the little victualling depot became the base for later white penetration and it was through importation of slaves and contact with the indigenous inhabitants that the dominant white attitudes towards colour and labour were first nurtured.
Although at first the Commander's Court operated largely as a court martial with jurisdiction only over Company servants, when the settlement expanded the court broadened its character and began to handle a variety of cases, both criminal and civil, involving a variety of persons- Christian and Moslem, bondsmen and free, men and women.
The society that developed in and around the settlement was a multiracial one in which Company servants, colonial settlers, slaves, manumitted slaves, Khoi Khoi (so-called Hottentots) and their descendants intermingled in a single legal order. The court enforced inequalities of civic status between owners and slaves, masters and servants and white and coloured, but maintained an identity of personal law. Save for limited recognition of Islamic law given to non-slave Moslems with regard to matters of family law and succession, all inhabitants, regardless of colour or status, came under the Roman-Dutch law and such statutes as were of local operation.
Most legal historians are agreed that the laws at the Cape were in a state of great confusion, and that they were generally administered in an arbitrary fashion by untrained judges. A Commissioner sent to enquire into the government of the Cape during the last years of Dutch rule exclaimed in a much-quoted statement: "Behold the sorry state into which the administration of justice has fallen!", and the most that even a relatively sympathetic modern historian could claim on behalf of the Dutch legal system at the Cape was that it was 'viable' (Visagie).
The Cape settlement was in effect a colony of a colony, being subject to the control of the Company's overseas headquarters in Batavia, which which in turn was subordinate to the Directors in Holland. An endless stream of statutes and instructions flowed from both sources to the Commander, later called the Governor. In addition a vast mass of local decrees were issued, frequently conflicting with each other and with the Batavian ordinances. Since the Cape did not possess any form of printing press until the beginning of the nineteenth century, promulgation of new laws took the form of public declamation or announcement in church; the decrees in manuscript were then filed away in the Governor's office. The court itself lacked precise instructions on how it should conduct its proceedings, directives being cast in such general form as: "The Governor must be gentle, godfearing, friendly and courteous, ready to converse with and aid the good, but severe and terrible to the wicked" (1685). The court judgements were very bare, containing merely the verdict and such authorities as had been quoted in argument, with the result that no body of precedent grew up for the guidance of later judges. If there were too many statutes, there were too few textbooks, and by 1739 the law library attached to the court contained only ten books, though this might have been regarded by the judges as a virtue rather than a deficiency.
There do not appear to have been many lawyers practising at the Cape during the period of Company rule, but court records mention the name of an advocate as early as 1688 followed by that of another one in 1706. By 1715 the question of attorney's fees had already become an issue, preceding in priority by three-quarters of a century the question of what rules should govern the formal admission of attorneys. In 1791 four attorneys were admitted, followed by a fifth the next year and a sixth the year after. Advocates and attorneys performed functions roughly similar to those of barristers and solicitors in England, with advocates having the higher official status and being entitled to wear hats in court.
Probably the most important of all the officers of court was the Fiscal, who from 1688 was called the Fiscal Independent because from then onwards he was appointed by the Directors in Holland and was responsible to them rather than to the local administration. His main duties were to defend the property and revenues of the Company, and to initiate prosecutions of criminal offences. In a general atmosphere of petty extortion the Fiscal was the most oppressive of all officials, and since he personally received a third share of all fines imposed he was well placed to enhance his fortune through overzealous or fraudulent use of his office. One writer described him as combining the acuteness of the lawyer with the greedy watchfulness of the customs officer, and to this day the predatory butcher bird in the Cape is popularly known as the Fiskaal.
The Company's monopoly of trade with passing ships and its exclusive control over the importation of slaves limited the amount of civil litigation, and obliged farmers with claims against the Company to seek their remedies by petition to higher authority rather than by suit in the local court. Law enforcement at the Cape was thus at first largely a matter of maintaining Company discipline, protecting Company property, and guarding Company morals but later it included regulating relationships between masters and slaves and masters and Khoi servants.
The introduction of slaves to the Cape was destined to have a profound effect on master-servant relationships in South Africa, and to establish the pattern, early recognised in legislation and judicial attitudes, whereby privilege was associated with racial type. Factors of race and skin colour, however, played little or no part in determining the social attitudes of the first Company servants and settlers, whose behaviour towards groups and individuals was conditioned largely by whether or not such persons were Christians, rather than by whether they were black, brown or white. The social and legal gap that existed between Christian and non-Christian could be crossed by means of baptism, which, particularly in the case of women slaves, opened the way to marriage and full legal and social integration into the Christian community. Thus the first Dutch commander arranged a special bridal feast in his home to celebrate the marriage of his surgeon to a Khoi woman, and many other marriages were contracted between Dutch settlers and freed women slaves. The most popular as well as the most ardently Dutch of all the Governors at the Cape in the eighteenth century was in fact the son of an inter-racial marriage.
As the number of slaves increased, however, what had started off as a means of cheap labour became a settled institution, so that the slave was no longer merely an unpaid servant but a valuable piece of property who contributed as much to the owner's status as to his patrimony. Most labour, skilled and unskilled, was done by slaves, and whites became increasingly disinclined to suffer what they considered to be the degradation of doing work fit for slaves. Gradually it came to be thought by colonists that slavery was the proper condition for all dark-skinned people.
Slaves were imported from all the many regions where the Dutch East India Company traded, while their number was added to by West Africans seized as prize cargo from British, French and Portuguese slave ships. The increase in the proportion of slaves to colonists is given in the following table:
TABLE 1:
Population of Colonists and Slaves at the Cape In the Eighteenth Century
Year Colonist Slaves
1701 1,334 891
1753 5,533 6,045
1795 14,927 16,839
1797 21,746 25,754
The relative smallness of the Cape settlement can be gauged from the following figures estimated for the year 1790 for other slaveholding societies. In the United States of America there were 757,000 blacks, all but eight per cent slaves, and consituting twenty per cent of the total population. In the British West Indies there were 455,000 blacks, who made up eighty-six per cent of the population. In the French colony of Saint Dominique 450,000 blacks, of whom six per cent were free, accounted for more than ninety per cent of the population (Brion Davis).
Most of the Cape slaves were employed on heavy domestic or farm work, but others were used as cooks, musicians or artisans. ("Jason, of Madagascar, appears to be of good character, and told me after I had purchased him that he could cook and knew how to make all kinds of pastries, sweet meats, marchpanes and other sweet things, and could play on the flute, hautboy and French horn.")
Life for household and artisan slaves was much easier than for those who worked in the vineyards and wheatfields. Many of the children of the former went to slave schools where they were taught by slave teachers, while some sat alongside their masters' children at general schools. A small number of artisans and pedlars were even permitted by their masters to trade on their own account, and a few were manumitted by will on the death of their masters. (However, only 893 slaves were manumitted between 1715 and 1792, mostly as a result of purchase by free relatives or friends.) Good conduct, however, often reduced a slave's chances of manumission by raising his economic value.
Those slaves who worked as farm labourers not only had to perform arduous work but were grouped by their owners, who wished to achieve the maximum discipline for the minimum cost, into large and tightly supervised field-gangs. Thus one of the consequences of the introduction of slavery at the Cape was the development of extensive rather than intensive agriculture, since it was uneconomical for the colonists to supervise small groups of slaves. The sons and grandsons of small-holding European peasants therefore became the owners of large semi-autonomous estates, exercising paternalistic control over slaves who were closely bound to them and with whom they were in constant contact. One writer has suggested that it was these slave-worked farms which were to constitute the ideal model of race relations for later generations of white South Africans, and that in its milder form it was slavery that provided the basis for 'Cape liberalism' which he felt could better be described as 'Cape paternalism' with an injection of nineteenth century British humanitarianism (Van den Berghe).
"Whereas the social conditions of slaves varied greatly, their legal condition was rigidly defined. The Dutch common law relating to slavery was based entirely on the well-developed principles of the Roman law of slavery, and long after slavery was abolished in Holland, these principles were applied in the courts of the overseas settlements. When the Fiscal was asked by the British early in the nineteenth century to prepare a report on the law relating to slaves at the Cape, his main source of reference was the Digest of Emperor Justinian published fourteen centuries earlier. This provided that slaves were the property of their masters who had bought them or who had owned their mother at the time of their birth. They could be sold or hired out at the will of their master, and on their master's death they passed with his other property to his heir. A purchaser of a slave could sue the seller for rescission of the contract or reduction of the purchase price for any latent defect found in the slave.
The law of slavery has rightly been described as practically an enumeration of the rights of the master, but provided a slave obeyed all lawful commands he was entitled to food, clothing and shelter and protection from bodily injury. By and large the slave was the object rather than the subject of rights. In addition to being liable to punishment by the court for ordinary contraventions of the law he could also be punished directly by the master for what were called domestic offences, such as carelessness, disobedience, drunkenness, impudence, desertion, minor household thefts, and other similar offences. For these misdemeanours the master could by statute impose a whipping with a sjambok of up to thirty-nine lashes, which according to one critical observer, was loosely interpreted by some farmers as a whipping for as long as it took the farmers to smoke a pipeful of tobacco (Barrow). More serious offences had to be reported to the authorities, who alone had the right to imprison a slave or place him in irons, save that as a temporary measure to prevent escape the master was permitted to impose physical restraints.
Continues...
Excerpted from Justice in South Africa by Albie Sachs Copyright © 1973 by Albie Sachs. Excerpted by permission.
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Table of Contents
| List of Tables | vii | |
| Preface | 11 | |
| Part I | The Historical Setting | |
| Chapter 1 | Law Enforcement and Race Attitudes in a Slave-owning Society: The Dutch Settlement at the Cape 1652-1795 | 17 |
| Postscript | 30 | |
| Chapter 2 | Enter the British Legal Machine: Law, Administration and Race Relations at the Cape 1806-1910 | |
| Introduction | 32 | |
| Transition | 34 | |
| Liberty, equality, servility | 39 | |
| Robes and oxwagons | 41 | |
| Barristers and gentlemen | 46 | |
| Attorneys and law agents | 49 | |
| Magistrates, justices of the peace and the law department | 50 | |
| The land register | 52 | |
| Law enforcers: army and police | 53 | |
| Prisons and punishment | 55 | |
| White justice | 59 | |
| Chapter 3 | In the Interior: The Administration of Justice and Race Relations in the Boer Republics and the Colony of Natal | 68 |
| The courts and race in the Orange Free State | 71 | |
| Law and race in the Transvaal | 76 | |
| Law and race in Natal | 84 | |
| Chapter 4 | The Incorporation of Africans into the Legal Order | |
| The administration of justice in tribal society--pre-conquest | 95 | |
| Dispossession nine points of the law: colonial relationships and colonial attitudes | 99 | |
| The administration of justice in a tribal area--the post-conquest position | 111 | |
| Part II | The Modern Machine | |
| Chapter 5 | Judicial Attitudes towards Race in South Africa | |
| The unification of the courts--the Supreme Court of South Africa | 123 | |
| Judicial attitudes to race | 132 | |
| Chapter 6 | The Administration of Justice in a Racially Stratified Society | 161 |
| The franchise | 163 | |
| Racial legislation | 164 | |
| Law enforcement and race | 166 | |
| (i) | Total prosecutions | 167 |
| (ii) | Prosecutions in terms of race-statutes | 168 |
| (iii) | Race laws and sex | 174 |
| (iv) | Race laws and residence | 176 |
| (v) | Increase in prison population | 178 |
| (vi) | Executions | 191 |
| (vii) | Corporal punishment | 195 |
| Chapter 7 | Black Attitudes and Actions | 200 |
| Attitudes towards lawyers | 201 | |
| Attitudes towards police | 203 | |
| Brown and black lawyers in action | 205 | |
| (i) | Passive resistance--advocate M. K. Gandhi | 205 |
| (ii) | Active resistance--attorneys Mandela and Tambo | 209 |
| Chapter 8 | Race Conflict and the Legal System | 230 |
| Criminal Procedure | 231 | |
| Discussion | 237 | |
| Police | 239 | |
| The judiciary and the executive | 244 | |
| Judging the judges | 256 | |
| Sources and Bibliography | ||
| (i) | Note on Sources | 264 |
| (ii) | Abbreviations | 264 |
| (iii) | References | 265 |
| (iv) | Bibliography | 272 |
| Index | 283 |